General Terms & Conditions

General Terms & Conditions

Sphere of Application

The terms and conditions of sale and delivery set forth below shall apply to any and all Supplier sale contracts. All future transactions within long-term business relations shall be subject to these terms and conditions as well.

Any term diverging from this agreement and proposed by the Purchaser shall become part of the sales contract only if explicitly agreed to in writing by the Supplier.

Sale contracts with foreign customers shall, additionally and exclusively, be subject to the laws of the Federal Republic of Germany. The Uniform Law on International Sale of Goods (Einheitliches Gesetz überden internationalen Kauf beweglicher Sachen) of July 17, 1973, Federal Law Gazette (BGBl) I, p. 856, and the Uniform Law on the Formation of Contracts for the International Sale of Goods (Einheitliches Gesetz über den Abschluss von internationalen Kaufverträgen über bewegliche Sachen) of July 17, 1973, Federal Law Gazette (BGBl) I, p. 868, shall be excluded.

Quotation and Acceptance of Order

No quotation or offer shall bind the Supplier to accept the related purchase order. In principle, quotations and offers are made without obligation. No contract of sale shall be effective, unless the supplier acknowledges the order in writing (acceptance of order).

The terms and conditions set forth in the acceptance of order shall exclusively be the terms and conditions governing the contract of sale. Any written or oral representation or statement related to the contract and made by either of the parties to the contract or its respective authorized agent prior to or during the conclusion of same contract shall not become part of said contract unless it is additionally specified in the acceptance of order.

The legal validity of any modification or supplement to an executed contract shall require the Supplier’s written agreement.

Purchaser business terms and conditions shall apply only if they do not conflict with Supplier business terms and conditions.

In the event that a production cost increase occurs during the period between contract conclusion and delivery, the Supplier shall be entitled to adjust the previously agreed sales price accordingly.

The Supplier shall be free to select the production site for the performance of the order; if stock items are to be delivered, Supplier shall have the choice of the most favorable place for dispatch.

Terms of Payment

Purchaser agrees to pay in full the invoice balance in Euros, net cash within 14 days of delivery, regardless of the date of receipt of the merchandise.

Payments will be credited as of the date of receipt by Supplier. Where payment is made by check, such payment will be credited when the check is honored by the financial institution. Amounts past due by 30 days shall, without reminder, be subject to default interest or finance charges of 2% or more above the applicable discount rate of Deutsche Bundesbank (Federal Bank of Germany) beginning on the 31st day. Payments received will first be applied to unsecured debt and then to the oldest debt, costs and interest. Any different appropriation by the Purchaser shall be permitted only if and to such extent as the payment exceeds unsecured debt and the sum payable on the date of payment made. Purchaser shall not be entitled to any set-off or retention rights.

In the event of non-payment of a Purchaser check, default of payment or payment suspension, Supplier may request immediate cash payment of the total balance regardless of any agreed payment due dates.

Advances made upon Supplier’s request shall bear interest at the Deutsche Bundesbank discount rate for up to 30 days subsequent to the invoice date.

In the event that the Purchaser is in default of payment where the Purchaser’s obligation to accept delivery applies, immediate advances for pending deliveries or a guarantee by means of irrevocable documentary credit shall be made to and upon the request of the Supplier.

The Supplier may request a security deposit, if the Purchaser’s economic situation is deteriorating or if a relevant change in the Purchaser’s legal status occurs. In the event that such security deposit is refused, the Supplier shall be entitled to rescind the contract.

Shipping Costs

Freight by rail will be shipped at Purchaser expense. Where a CPT (carriage paid to) agreement exists, the order will be dispatched free of charge; freight charges prepaid by the Purchaser will be deducted from the invoice amount. Truck freights to be shipped CPT by us will be dispatched by our contracted carrier.

Transportation Risk

Notwithstanding any transportation insurance policy entered into by the Supplier at Purchaser request and expense, all merchandise will be shipped at the risk of damage or loss to the Purchaser. In particular, Supplier shall not be liable for any damage with regard to breakage during shipping.

Title Retention Agreement

The Supplier reserves the right of ownership of merchandise delivered until payment of purchase price, interest and all applicable charges is received in full, bills submitted for payment mature and checks clear. Reserved ownership of merchandise shall also serve as security for any and all remaining claims from the business relationship, particularly from any current account balance. Asserting our ownership shall not be construed as rescission of contract.

Reservation of ownership also applies with “in rem“ effect to any Purchaser product that is a result of treatment or processing of an item supplied by us. Treatment and processing are performed on our behalf without acquisition of ownership on the part of those performing such treatment and processing, yet we remain free of obligations. Where merchandise supplied by us is combined or mixed with other items, the Purchaser herewith assigns to us his right of ownership or co-ownership in the redesigned object or the mixed inventory and is holding it for us.

Purchaser shall exclusively dispose of our property during the ordinary course of business and only as long as no default of payment exists; the property must neither be given in pledge nor assigned as security; in the event that a third party intends to access our property or any of our rights, Purchaser shall notify us without delay. Purchaser waives any and all rights defined in § 28 Composition Act (Vergleichsordnung). The Purchaser shall reserve towards his customers, ownership of the resold merchandise until the Purchaser’s invoice is settled in full. The Purchaser shall notify us immediately of any global assignment, i.e. assignment of all his future receivables to furnish security for any monetary loan.

If the Purchaser sells or in any other way disposes of merchandise supplied by us (regardless of their condition and also subsequent to treatment or processing), the Purchaser herewith assigns to us any and all receivables and claims arising from such sale including all his ancillary rights until all our receivables are paid in full and in the amount of the selling price we charged the Purchaser for our merchandise sold by Purchaser. At our request, the Purchaser agrees to advise his customers of such assignment, to make available to us all information and submit all documents required for enforcing our rights against the Purchaser’s customers. Unless in default of payment, the Purchaser shall be entitled (subject to revocation) to collect the receivables assigned to us; assignment to a third party shall not be permitted. The Purchaser shall transfer all collected sums assigned to us for security purposes without delay and by the payment due date of our receivables.

In the event that the total of existing security collateral and assigned claims exceed our trade receivables by more than 20%, we agree to re-conveyance or release thereof upon the Purchaser’s request.

Set-off

As to Purchaser transactions with any of our affiliated or associated companies (to include ultimate parent companies and their subsidiaries), we may set off claims against obligations. This shall also apply, if mutual claims fall due at different times (settlement by value date) or if cash payment has been agreed upon on the one side and payment by check has been agreed upon on the other side. As to current payment transactions, such entitlement shall apply to the balance.

All security interest, of any kind whatsoever, arising or provided to us or to any of the above-mentioned companies due to legal relationships with the Purchaser, shall be deemed to have arisen or been created in favor of all the remaining companies of that scope and may be claimed for payment of their receivables due from the Purchaser. Therefore, the companies concerned have assigned their claims in such way that each of said companies is entitled as a joint and several creditor to every claim against the Purchaser.

Delivery Time

In principal, Supplier does not warrant delivery time. Any relative or absolute transaction where time is of the essence or any just-in-time delivery shall require an express agreement in writing; a mere agreement on a fixed delivery time shall not suffice.

During the delivery time, the Supplier shall be entitled to perform reasonable partial deliveries.

Delivery times may be reasonably delayed (also in case of delivery default) due to force majeure or any other unforeseen causes beyond the control of the Supplier which the Supplier, despite of the exercise of all due diligence, could not avert, e.g. interruption of operations, government interference, difficulties in energy supply, delayed receipt of relevant raw materials or fire. The Supplier will notify the Purchaser of any such performance impediment without delay.

Delivery Terms

If the acceptance of order includes a delivery deadline, the Supplier shall be obligated to deliver the sold merchandise by that date. In the event that more than one delivery deadline has been stipulated, the obligation shall apply to the deadline allocated to the respective partial order.

Approximate delivery times indicated in the acceptance of order may be exceeded by 50%. Supplier notifications in this connection shall not be deemed contractual in nature.

If Supplier or pre-supplier production or shipping feasibilities are substantially restricted due to force majeure or such occurrences where remedy is beyond the Supplier’s control or cannot reasonably be expected, the Supplier shall be entitled to exceed stipulated delivery deadlines or delivery times by a reasonable period of time or to declare the contract or part of the contract void without any obligation for subsequent delivery and/or without any liability for damages.

The Purchaser shall not have any right to damages for late performance or non-performance of the contract.

Obligation to Accept Delivery

Obligation to accept delivery constitutes the Purchaser’s primary contractual obligation in any event.

The Purchaser agrees to accept the purchased merchandise without delay as soon as such merchandise is ready for delivery, however, not prior to the start delivery date set forth in the acceptance of order or, in the event of more than one set start delivery date, not prior to the start delivery date allocated to the respective partial order.

The Purchaser shall not be obligated to accept any partial delivery not expressly agreed upon, unless limited load space or transportation means capacity does not permit loading the entirety of the merchandise which the Purchaser is contractually obligated to accept in one delivery.

In the event that the terms for shipping of the purchased merchandise requires supplementary provisions to the acceptance of order on the part of the Purchaser, the obligation to accept delivery shall include the obligation to timely notify the Supplier of such provisions.

Default in Delivery or Acceptance

In the event of default in delivery or acceptance of a party to the contract, the other party may exercise its right to rescind solely with regard to that part of the purchase contract that refers to partial deliveries not yet performed and accepted as agreed upon.

In the event of the Purchaser’s default in acceptance (§ 293 and following sections of the German Civil Code (BGB)), the Supplier shall be reimbursed by the Purchaser for expenses incurred. For storage of merchandise on our premises, a monthly fee of € 4.00 per pallet shall be paid. The proof of lower cost shall be on the Purchaser; the proof of higher cost (in particular cases) shall be on the Supplier.

Additional statutory or contractual rights and claims of the Supplier from Purchaser default in acceptance and from culpable violation of the obligation of acceptance remain unaffected.

Protective Rights and Third Party Claims

As to the ordered design based on the Purchaser’s own specifications of shape, color, dimension, weight and so forth, the Purchaser shall be responsible for any infringement of third party protective rights. The Purchaser shall release, indemnify and hold harmless the Supplier from any such liability and from any claim or action any third party might file. Solely positive knowledge or grossly negligent lack of knowledge shall be attributable to the Supplier.

The Purchaser shall be liable for any damage to the detriment of the Supplier where carrying out the order infringes third party protective rights. Purchaser shall be exempt from such liability if and in so far as the infringing specifications of the merchandise were proposed by the Supplier or the violation is solely related to the applied manufacturing process.

Disclaimer

General Disclaimer

a) Supplier shall not be responsible or held liable for any damage (regardless of legal grounds), unless the Supplier’s authorized representative or managerial staff caused the damage willfully or by gross negligence and the damage was foreseeable at the conclusion of the contract. Any further claims for damages shall be excluded. This shall also apply to damages caused during removal of defects of the merchandise.

b) Supplier shall not be responsible or held liable for the fitness of the delivered merchandise for a particular purpose intended by the Purchaser, unless such purpose is referred to in the contract.

c) Supplier shall also not be responsible or held liable for damages arising in connection with the use or the processing of the delivered merchandise.

Limitation of Liability under the Product Liability Act

Quotation calculation is based on limited liability. The following limitations of liability shall apply:

Kefla-Glas GmbH & Co. KG’s liability for claims arising from willful misconduct or claims in accordance with the liability provisions set forth in the Product Liability Act shall be subject to statutory regulations. In all other cases, Kefla-Glas GmbH & Co. KG’s liability shall be governed by its general conditions of sale and delivery; however, liability shall not exceed the cost of the product giving rise to the claim. This limitation shall apply to any and all contractual and non-contractual claims for damages, independent of the legal nature of the asserted claim.

Furthermore, any warranty claim with respect to defects arising after the delivered bottles are filled shall be excluded, unless caused with intent.

Any liability arising from a warranty shall remain unaffected. The aforementioned liability regulations shall apply mutatis mutandis in case of a claim against any employee, officer, representative or vicarious agent of Kefla-Glas GmbH & Co. KG by any of its contracting parties.

Disclaimer for Cork Stoppers

Cork is a natural product. Thus, we exempt ourselves of liability for cork breakage, adverse odor or taste effect (“corky taste“), change in color of package content (bottle content) or cork permeability. In reference to the last named, it is herewith expressly pointed out to the Purchaser that T-topped cork is suitable only for upright storage of liquids. Technological improvements as well as required technical modifications shall be deemed contractual provided that they do not entail any deterioration in value. In the event of any rightful notice of defect for faulty delivery, damage during shipment or any other defect acknowledged by us in written form, we shall in any event be entitled to remedy said defects or make redelivery of merchandise. Unless otherwise agreed in writing, the Purchaser shall not be entitled to any price reduction. Claims beyond those aforementioned, particularly claims for damages, punitive damages or economic loss suffered, shall be excluded.

Disclaimer for Specialty Bottles

The breakage/reject rate of delivered specialty bottles may be as high as 2.5%. In the event of a rate exceeding the aforementioned, the Supplier shall be immediately notified and will then determine the further procedure. Failure to do so shall result in exclusion of any and all liability and damages.

Disclaimer for Sprayed Bottles and Bottles with Organic Imprint

Damages caused by improper handling of sprayed bottles and bottles with organic imprint are not covered by supplier warranty. With regard to further processing, the Purchaser shall therefore comply with the following warnings and directions:

Store in a dry place indoors. Moisture may destroy the coating.

Do not sterilize or clean by immersion sterilizers, automatic washers, ozone sterilizers or automatic brush-cleaning systems.

Avoid mechanical stress. Complaints made upon completion of filling without a previous trial run will not be recognized. Prevent collision among filled bottles and use crates equipped with dividers. The bottles are not suitable for transport or storage in lattice containers.

For labeling, use dispersion adhesives only.

Specification

Unless clearly specified in the contract of sale, the Supplier shall be entitled to determine or supplement, within the boundaries of the contract of sale, specifications, volume and quantity of the respective type of the deliverable items. This shall apply to partial orders mutatis mutandis.

Quantity and Product Design Deviations

Supplier will make a good faith effort to adhere to quantity and weight (in kilos) details as specified in the acceptance of order. The number of items may, however, deviate as follows:

Number of items stated in the acceptance of order Tolerable

per item type deviation rate:

Less than Minimum

./. 100,000 +/-15%

100,000 50,000 +/-25%

50,000 10,000 +/-35%

All information regarding weight, content, dimensions and so forth shall be deemed average. Unless tolerable deviation limits are expressly stipulated, deviations in line with commercial practice shall be permitted. Accurate color shades are not covered by warranty.

Packaging

Unless agreed otherwise, packaging shall be left to the Supplier’s discretion.

Purchaser shall handle packaging materials (particularly pallets, box pallets and containers) indicated on the invoice as “loaned“ with care and shall return said materials to the Supplier immediately upon receipt of the ordered merchandise and free of charge to the Supplier.

Loaned packaging materials that are not returned to the Supplier within three months may subsequently be subject to a reasonable rental fee. In the event of loss of loaned packaging materials, the Purchaser shall bear the related replacement cost in full.

Moulds and Tools

Fees for the provision of moulds (procurement, production, modification or repair) laid down in the acceptance of order shall be borne by the Purchaser. The Purchaser’s obligation shall commence as soon as the moulds are in the possession of the Supplier and ready for use. The moulds shall remain the property of the Supplier after all fees are paid by the Purchaser.

In the event that the Purchaser provides the Supplier with moulds for the performance of orders placed by the Purchaser, such moulds shall become the property of the Supplier upon delivery of said moulds.

The Supplier agrees to use any mould which the Purchaser paid in whole or in part or which the Purchaser provided to the Supplier exclusively for the performance of orders placed by the Purchaser. The Supplier further agrees to keep each of such moulds ready for the performance of further sales contracts with the Purchaser until end of life wear-out of such mould. These obligations shall terminate if no further sales agreement is reached within three years following the contract of sale necessitating that mould.

Merchandise delivered as part of the same shipment will be billed on the same invoice.

Delivered merchandise shall be deemed part of the same shipment, if in the framework of business relations between the same Supplier and the same Purchaser, it is

a) dispatched to the same destination with the same shipping documents of a public or commercial carrier (freight bill, bill of lading, parcel dispatch note), or

b) shipped at the same time to the same destination by motor vehicle (truck trailer), or

c) picked up on the same day from the same works by the Purchaser or the Purchaser’s agent.

The date of invoice shall be the same as the date of shipping.

Complaints

Complaints will be reviewed only if made within 8 days after the receipt of the merchandise and prior to the merchandise being passed on to a third party.

In the event that the complaint is justified, the Purchaser shall only be entitled to a discount commensurate with the decrease in value. Further claims, particularly for cancellation of order or for damages, shall be excluded.

Upon expiration of one month, notification of hidden defects shall be excluded.

Objections to an invoice shall be made no later than three days from the receipt of the invoice.

Place of Performance and Jurisdiction/Venue

Place of performance of delivery and payment shall be Bingen/Rhine/Germany. Venue for all legal relationships arising from the business relation shall also be Bingen/Rhine/Germany. This shall also apply to actions for claims concerning payments by check and for sale or delivery by one of our delivery warehouses.

Legal Validity

In the event that any provision of these Terms and Conditions of Sale is held to be invalid or void, such invalidity shall not affect the validity of the remaining provisions. The Terms and Conditions of Sale shall be deemed agreed upon, even if we do not expressly object to a diverging counter-confirmation.